Yesterday, the U.S. House Judiciary Subcommittee on Courts, Intellectual Property and the Internet held a hearing entitled, “Preservation and Reuse of Copyrighted Works.” The hearing convened a panel of witnesses representing both the content and user communities to discuss a variety of copyright issues, including orphan works, mass digitization and specific provisions of the Copyright Act that concern preservation and deteriorating works. Representing the library community on the panel was Jim Neal, Columbia University librarian and vice president for Information. Neal’s statement discussed fair use in the context of library preservation, the relationship between fair use and the library exceptions language of Section 108 of the Copyright Act, and the issue of orphan works. His statement was endorsed by the Library Copyright Alliance (LCA), which includes ALA, the Association of Research Libraries and the Association of College and Research Libraries. LCA also submitted a statement to the Subcommittee.

The Importance of Fair Use to Library Preservation Efforts

In his statement, Neal used examples of some of the preservation efforts currently underway in the Columbia University Library System to illustrate how fair use is essential to helping libraries confront preservation challenges specific to the digital age. He argued that without fair use, libraries would not be able to digitize information stored in antiquated formats or salvage content from now-defunct websites.

“Digital resources are not immortal,” said Neal. “In fact, they are in formats that are more likely to cease to exist, and must be transferred to new digital formats repeatedly as technology evolves. Libraries charged with this work require robust applications of flexible exceptions such as fair use so that copyright technicalities do not interfere with their preservation mission.”

The Relationship Between Fair Use and Section 108 of the Copyright Act

In his written testimony, Neal argued that the specific library exceptions language contained in Section 108 of the Copyright Act provides additional certainty to libraries as they work to preserve their collections:

Library exceptions in Section 108 of the Copyright Act supplement, and do not supplant, the fair use right under Section 107…Congress enacted Section 108 in 1976 to provide libraries and archives with a set of clear exceptions with regard to the preservation of unpublished works; the reproduction of published works for the purpose of replacing a copy that was damaged, deteriorating, lost, or stolen; and the making of a copy that would become the property of a user. Over the past 38 years, Section 108 has proven essential to the operation of libraries. It has guided two core library functions: preservation and inter-library loans.”

The existing statutory framework, which combines the specific library exceptions in Section 108 with the flexible fair use right, works well for libraries, and does not require amendment.

Neal used the example of the Authors Guild v. HathiTrust case to rebut arguments that the protections provided to libraries under Section 108 represent the totality of copyright exemptions and privileges for which libraries may qualify. He asserted that Judge Baer’s district court decision in favor of the Hathitrust Digital Library, as well as the plain language of Section 108 itself, suggest that just because a specific exemption or privilege is not listed under Section 108 does not mean it cannot be claimed under the doctrine of fair use. Neal devoted an entire section of his written testimony to praising the digitization efforts of Hathitrust and expressing his hope that the Second District Court would uphold Judge Baer’s decision.

Neal also argued against the need for additional orphan works legislation. He suggested that recent judicial decisions clarifying the scope of fair use and eliminating the automatic injunction rule, as well as the lack of legal challenges to recent library efforts to engage in mass digitization of orphan works, illustrate that current law is sufficient to address the orphan works issue.

Neal was a passionate and articulate voice for libraries at yesterday’s hearing. Nonetheless, when asked whether there was any hope for resolving the most hot-button copyright issues of the day, he expressed hope that libraries and rights holders could engage in a substantive, cordial discussion on fair use, mass digitization, orphan works and other matters moving forward.

About Charlie Wapner

Charlie Wapner is an information policy analyst for the ALA Office for Information Technology Policy. Charlie works on a broad range of topics that includes copyright, licensing, telecommunications and E-rate, and provides support for the ALA's Policy Revolution! initiative sponsored by the Bill & Melinda Gates Foundation. Charlie comes to the American Library Association from the Office of Representative Ron Barber (D-AZ) where he was a legislative fellow.